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Hearing Officer Affirms Medina Spirit Derby DQ And Baffert Penalties

The hearing officer assigned to oversee trainer Bob Baffert and owner Zedan Racing Stables' appeal of penalties related to the drug disqualification of 2021 GI Kentucky Derby winner Medina Spirit (Protonico) has issued a recommended order to the Kentucky Horse Racing Commission (KHRC) that the underlying stewards' rulings be affirmed in their entirety.

The 47-page report was made public via press release by the Kentucky Public Protection Cabinet early on the Friday evening of the long Memorial Day holiday weekend. Its issuance comes 765 days after Medina Spirit crossed the finish wire first in the 147th Derby but subsequently tested positive for betamethasone in a KHRC post-race drug screening.

The recommendation, which must be considered and voted upon by the full KHRC board at a later date, upholds Medina Spirit's DQ, a 90-day suspension that Baffert has already served but wanted expunged from his record, and a $7,500 fine imposed upon the Hall-of-Fame trainer. Acceptance of the report's findings by the KHRC would affirm Mandaloun (Into Mischief) as the official winner of the 2021 Derby.

“The Hearing Officer finds and concludes that the KHRC has shown that the stewards' decision was made on reliable, substantive evidence that the horse, Medina Spirit, was administered and carried the prohibited substance, betamethasone,” hearing officer Eden Stephens wrote.

“The plain language of the KHRC's betamethasone regulations is clear: betamethasone is prohibited in a post-race sample,” Stephens wrote.

The debate over whether or not Medina Spirit's betamethasone finding was the result of an injection or the application of an ointment to treat a skin condition had been a focal point of testimony during six days of appeal hearings in August 2022.

“Parties agree the KHRC has the burden of proof but differ framing the question of what needs to be proven,” Stephens wrote. “KHRC argues it must establish a prima facie case that Medina Spirit [tested positive for a prohibited drug]. Appellants believe this case is solely premised on whether the use of a topical ointment, Otomax, for a clinically diagnosed skin infection on a racehorse, constitutes a violation of any clearly expressed and unambiguous rule…” Stephens wrote.

“At the running of the 147th Kentucky Derby on May 1, 2021, no KHRC regulation set forth an 'established concentration level' under which betamethasone is allowed in a post-race sample. Therefore, a laboratory finding of betamethasone in a post-race sample establishes a prima facie case that a trainer violated the KHRC's medication regulations,” Stephens wrote.

“Appellants contend that 810 KAR 8:010 Section 4 permits the administration of betamethasone ointment; therefore, a betamethasone positive arising due to an ointment administration is not a violation. This interpretation improperly conflates the KHRC's regulations governing medication administration with the regulations governing medication levels in post-race samples,” Stephens wrote.

“The KHRC's regulations do not state that any route of administration excuses a post-race betamethasone positive,” Stephens wrote.

“Additionally, the KHRC has a longstanding, uninterrupted history of treating all medications without thresholds as limit-of-detection medications and of finding that the administration route leading to a medication positive is irrelevant,” Stephens wrote.

“Betamethasone is a Class C drug. Its presence in a horse's post-race sample is prohibited by the KHRC, regardless of method of administration. Betamethasone has the potential to influence performance, as well as health and safety, in equine athletes,” Stephens wrote.

“Finally, the Stewards' Rulings in this case were restrained and reasonable. The stewards could have imposed a five-year suspension and $50,000 fine. Instead, they suspended Mr. Baffert for 90 days and fined him $7,500,” Stephens wrote.

The press release outlined the next steps in the process.

“Both parties can file exceptions to the recommended order should either party believe the hearing officer made an incorrect finding of fact or conclusion of law. The matter will then be referred to the KHRC to issue a Final Order,” the release stated.

“A Final Order may be appealed to Circuit Court within 30 days of issuance of the Final Order. If no appeal is filed within 30 days, the case will end,” the release stated.

A Saturday morning voicemail message seeking comment from Baffert's attorney, Clark Brewster, did not yield a reply prior to deadline for this story.

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CDI Releases Statement Regarding Baffert Lawsuit

Following a summary judgment issued by a federal judge Wednesday that dismissed Hall of Fame trainer Bob Baffert's lone remaining claim in his lawsuit against Churchill Downs, Inc. (CDI), Churchill Downs issued a statement on Thursday. The statement appears in its entirety below.

“Churchill Downs is pleased that the Court granted our Motion for Summary Judgement in the Civil Action brought against our company, CEO and Board Chairman by Bob Baffert, resolving in our favor the last remaining claim, just as the Court had ruled in our favor on all of his previous claims. While he may choose to file baseless appeals, this completes the seemingly endless, arduous and unnecessary litigation proceedings instigated by Mr. Baffert.

“Our actions to suspend Mr. Baffert following Medina's Spirit [Protonico]'s confirmed positive for a prohibited race-day substance, coupled with his extensive history of drug violations, was done in the best interest of protecting the integrity of horseracing. Now more than ever, participants and operators in this industry must individually and collectively assume responsibility to take every reasonable measure to protect our equine and human athletes and reject any practice that jeopardizes that mission.

“We are encouraged that the Horseracing Integrity and Safety Authority (HISA) Anti-Doping and Medication Control (ADMC) Program has gone into effect this month which will allow uniform rules to govern the industry and expedite both the testing and adjudication process which has historically created confounding delays and threatened the confidence and trust of our fans.

“As we stated when we suspended Mr. Baffert in June 2021, we reserve the right to extend his suspension and will communicate our decision at the conclusion of the initial two-year suspension period. This U.S. District Court ruling in our favor is a victory in our ongoing actions and steadfast commitment to protecting the safety of our equine and human athletes.”

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The Week in Review: Betting on Good Karma to Overcome Bad Headlines

Next week at this time, we'll know if the sport is on the cusp of another Triple Crown sweep. Of all the potential excuses for GI Kentucky Derby winner Mage (Good Magic) not emerging victorious from the GI Preakness S., intense media pressure is unlikely to be one of them.

You could make the argument that the diminutive, white-blazed chestnut with the endearing overbite has enjoyed one of the least-scrutinized post-Derby weeks of any winner in recent history. That's not so much because the spotlight on his accomplishment has dimmed. It has to do with overlapping waves of chaos commandeering the game like a searing mint julep hangover that won't go away.

Colleague Bill Finley wrote in this space last week about the seven horse deaths at Churchill Downs that overshadowed Mage's Derby score. That was followed a few days later by proponents and opponents of the Horseracing Integrity and Safety Act (HISA) sparring in federal court, where the highlighting of racing's recent, grim headlines to prove points underscored a nasty turn in a two-year-old lawsuit that has no end in sight.

Additionally, Mage was eclipsed in the news by the colt who was favored to beat him, but had to scratch on the morning of the Derby with a foot bruise. That would be the 2-year-old champ Forte (Violence), who on May 9 was revealed to have failed a drug test at Saratoga last September, with the public kept in the dark the entire eight months afterward until the scoop was leaked to the New York Times.

Two days later, on May 11, Forte was disqualified from the GI Hopeful S. on the basis of a non-steroidal anti-inflammatory medication positive. The case is under appeal, with the only certainty being that it, too, is likely to linger in the courts for a long, long time.

The same day as word of Forte's DQ broke, the connections of last year's underdog Derby upsetter, Rich Strike (Keen Ice), also got dragged into the headlines for a cringe-worthy cameo. The issue had nothing to do with the colt's 0-for-6 record since winning the first leg of the 2022 Triple Crown.

Rather, trainer Eric Reed informed owner Rick Dawson (via text) that he was resigning after the two failed to come to an agreement over–Are you ready for this?–a proposed movie deal. Reed's version of events is that he stepped away after Dawson gave him an ultimatum to either drop the project or get fired. Dawson's take is that he was being kept out of the loop on negotiations and that “things were done behind my back.”

Will “Richie” still be destined for the big screen? Destined for prolonged litigation seems more like it.

And finally, even though it managed not to percolate to the top of the news cycle last week, trainer Bob Baffert and Churchill Downs, Inc., were still trading court filings in Baffert's federal civil rights lawsuit against the gaming company that controls the nation's most important horse race. Yes, Baffert's two-year banishment from the Derby has come and gone, but the lawyering is far from done and the legal fight grinds on.

Separately, we still don't know the outcome of the appeal of Medina Spirit's betamethasone DQ from the 2021 Derby, which is what sparked both Baffert's ruling-off and the lawsuit. That's because the Kentucky Horse Racing Commission still hasn't adjudicated the appeal, 743 days after the test sample was drawn.

Bottom line? All this attention being deflected away from Mage lets him coast into Baltimore further under the radar than most Derby winners. Theoretically, that's great for the colt. For the sport as a whole, it's embarrassing.

The last four Derbies have all been dysfunctional to some degree. An inexplicable 80-1 winner was 2022's oddity. The in-limbo drug DQ appeal of Medina Spirit still clouds the 2021 Derby. The 2020 pandemic necessitated that year's Derby be run in September instead of May. In 2019, it was the DQ of first-across-the-line Maximum Security for in-race interference, the only demotion of a Derby winner for an in-race foul, and it too sparked a failed federal lawsuit.

Mage's trainer, Gustavo Delgado, had a peripheral role in that controversial 2019 Derby. He saddled the 71-1 Bodexpress, who, just like Mage, set sail for Louisville after running second in the GI Florida Derby.

The difference was that Bodexpress went into the Kentucky Derby while still a maiden. Nevertheless, he showed grit by pressing the pace and holding a forward position against far more seasoned horses before tiring and then dramatically checking out of action in the far-turn scrum that resulted in Maximum Security's DQ.

Delgado, who had saddled multiple Classics-level stakes winners in his native Venezuela prior to trying his luck with a stable in America in 2014, wheeled Bodexpress right back two weeks later, giving him his first starter in the Preakness. The colt went off at 20-1, but dislodged jockey John Velazquez at the start and careened around the track riderless before being safely corralled.

Because of his antics, Bodexpress became a social media sensation and something of a fan favorite. After a five-month freshening, he broke his maiden in Florida and subsequently won two allowance races.

In 2020, Bodexpress scored at 11-1 odds in the GI Clark S. at Churchill to cap off his racing career, while giving Delgado his second Grade I winner in the United States. That turn of events signaled better Triple Crown karma might eventually be in Delgado's pipeline.

The trainer's son and assistant, Gustavo Delgado, Jr., told TDN's Katie Petrunyak on Friday that his father initially scoffed at the $290,000 purchase of Mage at EASMAY last spring.

“He didn't like him because he's got parrot mouth,” Delgado, Jr., said. “I remember he looked at me and said, 'The next time you are buying a horse, send me a video first and don't buy a parrot mouth.' But I told him, 'Trust me, this guy can run.'”

Talk about looking a gift horse in the mouth.

Mage fits the profile of a Derby winner who might not be fancied as the favorite in the Preakness, where he'll face a wave of fresh competition. But he's now uncorked big moves on the far turn in two straight Grade I races, and as a light-framed colt, his way of going doesn't seem to impose the type of pounding that would be detrimental to firing right back in two weeks.

On Saturday, we'll find out if Mage can spare the sport a little of his upbeat mojo. Right now the game could use a touch of his no-drama, all-business vibe.

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Baffert Wants Federal Judge Removed from Case Against CDI

Trainer Bob Baffert now wants the federal judge handling his year-old lawsuit against Churchill Downs, Inc. (CDI), to recuse herself.

The stated reason is that legislative lobbying efforts conducted by the judge's husband for two racing industry clients allegedly create a conflict of interest for Judge Rebecca Jennings in adjudicating Baffert's case.

Baffert is attempting to reverse the second year of a two-year ban by CDI that prohibits his trainees from accruing qualifying points and competing in the 2023 GI Kentucky Derby.

CDI first imposed that punishment in June 2021 because of a string of drug positives in horses Baffert trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and in the 2021 Derby.

The now-deceased Medina Spirit (Protonico) tested positive for the Class C drug betamethasone after crossing the finish wire first in the 2021 Derby.

Seven months later, the colt collapsed after a workout and died in December 2021.

Medina Spirit was posthumously disqualified from the Derby by the Kentucky Horse Racing Commission (KHRC) in February 2022.

Baffert's appeal on that matter (and a suspension he has already served but wants cleared from his record) is pending.

“The plaintiffs submit that the Court's impartiality is in question because [the judge's] husband, Michael Patrick Jennings and his firm, Commonwealth Alliances, are legislative agents employed by The Jockey Club,” Baffert's motion for recusal stated.

“The Jockey Club has actively intervened publicly and litigiously in the litigation surrounding the Bob Baffert/Medina Spirit matter since the beginning of state and racing association action against Mr. Baffert,” the motion stated.

“R. Alex Rankin, a named Defendant in this case, is a senior, influential member of the Jockey Club and serves as a Jockey Club Steward,” the recusal request continued. “The motion is brought on a good faith basis after a diligent investigation of the public record and not for 'other advantage or litigation tactic'…. [T]he impartiality of the Court is in question, and the necessary remedy is a disqualification.”

In an affidavit signed by one of Baffert's lawyers that accompanied the motion, attorney Clark Brewster stated that Patrick Jennings was also employed as a lobbyist by The Stronach Group (TSG).

Although TSG tracks have not banned Baffert, the filing noted that the lobbyist's engagement with TSG overlaps a time when “litigation was pending against TSG by Jerry Hollendorfer (a racehorse trainer excluded from Santa Anita by TSG).”

Brewster's affidavit stated that Patrick Jennings's firm was paid $50,750 by The Jockey Club during 2022, and that his personal income from that client was $34,256. His 2022 personal income from TSG was $34,038 out of $74,219 that went to his firm.

Baffert had initially sued CDI on Feb. 28, 2022, alleging civil rights violations related to what Baffert said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

According to the court docket, Judge Jennings was “randomly assigned” to the case on the same day it was filed.

“The fees earned in 2022 are a clear source of extrajudicial bias,” Baffert's filing stated. “At no time during the litigation did Judge Jennings disclose her husband's employment by The Jockey Club [or TSG].”

Brewster's affidavit laid out his version of recent events, including details of a spat that erupted over the past week involving differences of opinion related to alleged “ex parte” discussions between the judge and the CDI defense team that potentially occurred without Baffert's attorneys being included. The result was a written denial from the judge that anything improper happened, along with an admonishment from the judge to Baffert's legal team.

“After the Court adjourned on Feb. 3, I sent an informal email to lead counsel for the defense seeking some understanding of how he knew the Court would commence the continued hearing with the defense being permitted to call a party-witness (Mr. Baffert) out of order and cross-examine a party before he was presented by Plaintiffs' counsel,” Brewster stated in his affidavit.

“Given that not every contact with court staff is a prohibited ex parte communication, there was no accusation of ethical or judicial impropriety. The email was sent to gain an understanding of Defendants' surprising degree of knowledge about the mode and manner of the proceedings…

“Defense counsel sent an incendiary email response, copying Judge Jennings and accusing [Brewster] of making false accusations regarding ex parte communications between defense counsel and the Court,” the affidavit stated.

On Feb. 8 Judge Jennings issued a memorandum that stated, in part, that, “The Court has not engaged in ex parte communications with either side [and] Plaintiffs are warned that any future conduct implicitly threatening the Court, attempting to create or fabricate a situation suggesting recusal, or made for other advantage or litigation tactic will not be tolerated and may result in a show cause hearing and disciplinary action.”

Brewster claimed in his affidavit that he was “bewildered by the announcement of Judge Jennings and the 'warning' to counsel to not suggest recusal, given that counsel had made no effort to impugn the Court or to seek recusal.”

Then Brewster engaged in some Googling, which did lead to the seeking of recusal.

“To gain some understanding of Judge Jennings's disclosed concern regarding recusal, [I] searched the internet on Feb. 8 and discovered that Judge Jennings's husband, Michael Patrick Jennings, is the Legislative Agent/Lobbyist for The Jockey Club,” Brewster stated in his affidavit.

This is not the first time that a conflict-of-interest recusal has arisen in Baffert's intertwined legal cases and administrative appeals.

In September 2022, Clay Patrick, the hearing officer assigned to Baffert's KHRC appeal, recused himself three weeks after the appeal's testimony was heard.

Patrick stepped down after Brewster revealed that he had unknowingly bought a $190,000 horse at the Keeneland September Yearling Sale that was co-owned by Patrick, who operates Ramspring Farm.

The KHRC assigned a new hearing officer to that case.

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